The State also has to prove that the alcohol was consumed prior to or
during driving. This element of proof is often lacking in accident cases or in any scenario where the driver can't be positively identified or placed behind the wheel of the vehicle within a 3-hour window of the test being taken.

For example, in Norton v. State, 280 Ga. App. 303, 640 S.E.2d 48 (2006), an officer was dispatched to a one vehicle collision at around 2:30 a.m. in the morning where the driver had lost control of the vehicle, crossed to the opposite side of the road, and struck an embankment. The back end of the vehicle was partially obstructing the roadway. Two officers found the Defendant lying on the side of the road less than one half of a mile from the scene of the collision. Defendant stated that she had lost control of her vehicle, driven into the embankment, and then left to seek help. Based on her physical manifestations, Alco-sensor test and performance on field sobriety tests, Defendant was arrested for DUI less safe alcohol. She agreed to a breath test after implied consent was read and had a breath alcohol content of 0.135.

In reversing the conviction for the DUI per se conviction, the Court of Appeals noted that the State did not put forth sufficient evidence that Defendant had driven her vehicle within three hours prior to the breath test being administered. The officers did not know when the collision actually occurred. Additionally, at a minimum there was no evidence introduced at trial of a “fresh accident scene” such as evidence of a warm or running engine to show Norton's recent operation of the vehicle.

Likewise, in Peters v. State, 281 Ga. App. 385, 636 S.E.2d 97 (2006), the Court of Appeals found evidence insufficient to show that a Defendant's blood alcohol level exceeded the legal limit within three hours of when he had last had control of a moving vehicle. The State submitted no evidence about the time blood was drawn at the hospital, and no circumstantial evidence from which the time of the blood draw could be inferred. Additionally, no evidence was presented by the State showing when the officer arrived at the location after receiving the dispatch; how long he remained at the scene conducting his investigation, the amount of time it took to drive from the scene to the hospital and how long he was required to wait before the lab technician drew Defendant's blood.

In Stadnisky v. State, 285 Ga. App. 33, 645 S.E.2d 545 (2007), Defendant hit another person's car, which made his own car inoperable. The first officer arrived within five minutes of dispatch of the accident and asked both parties not to leave until a second officer arrived. When the second officer arrived, the first officer had left the scene. The second officer noted that Defendant had bloodshot eyes and smelled strongly of alcohol. Defendant was arrested for driving under the influence, read implied consent, and agreed to take the State's breath test approximately one and one-half hours after the second officer had been dispatched to the location. The second officer determined that the breath test was conducted within three hours for the per se DUI because the original dispatch concerning this accident occurred approximately one hour and forty minutes earlier.

The Court of Appeals rejected the argument that the conviction for DUI per se could not be sustained because the State failed to eliminate the possibility that he consumed alcohol after his driving had ended. The court held that based on the record, it could not say that the trial court's decision was clearly erroneous. The State does not have to eliminate every possibility of innocence in order to achieve a conviction in a criminal case. The State must introduce evidence that proves guilt beyond a reasonable doubt, each element of the crime as prescribed in the statute.

Practice Commentary

This case seems to allow the State to shift the burden of proving all elements of the per se offense to the defense. One "weak" element in this case was the lack of proof of the TIME of driving. The radio dispatcher could not have observed any driving or any accident. Timely objections may have changed this outcome.

In O'Connell v. State, 285 Ga. App. 835, 648 S.E.2d 147 (2007), two "911" BOLO calls of a "gray Thunderbird with a possible drunk driver" at a mobile home park led two separate officers to look for defendant's vehicle. The officers never saw "any vehicle in motion," but a second officer's visit to the mobile home revealed the Thunderbird parked in front. The hood was still warm. The first officer had been by there less than twenty minutes before when there was no vehicle there.

When officers approached and directed defendant outside to talk, he was so drunk inside the trailer that he could not unlatch the front door. The defendant suggested that officers "come on in" by going to the rear door. In his 0.217 stupor, defendant told the officers that he had driven and that he had not driven the car. He admitted to having had two to three drinks.

The Georgia Court of Appeals held that there was sufficient circumstantial evidence to show that defendant's blood alcohol level exceeded the legal limit within three hours of the time when he was in actual physical control of a moving vehicle. This evidence included defendant's admission of drinking, the warmth of the hood of his car, and evidence that defendant had consumed alcohol before driving based (circumstantially) upon his degree of intoxication less than twenty minutes after driving ended, despite the fact that the officers did not know when defendant had initially started drinking.

For cases made July 1, 1997 and after, the “per se” level for drivers under age 21 was lowered to 0.02 grams percent. For commercial truck operators age 21 or over, the BAC level of 0.04 or more supports a conviction of “per se” DUI.

The three-hour “window” only applies to the State's pursuit of a per se count against either drivers under the age of 21 [pursuant to O.C.G.A. § 40-6-391(k)], or for adults age 21 or over who are charged with a violation of
O.C.G.A. § 40-6-391(a)(5).

The statutory provisions dealing with the per se law for operators of commercial vehicles do not allow the same 3-hour window for proof of a test result. Hence, the State will be required to prove the 0.04 (or more) reading at the time of driving. Moreover, driving or actual physical control within the three-hour time frame must be proven by the State. This can be proven by circumstantial evidence.Yarbrough v. State, 241 Ga. App. 777, 527 S.E.2d 628 (2000).

The Court of Appeals recently found that O.C.G.A. § 40-6-391(a)(5) does not require a chemical test performed upon the suspected DUI driver within three hours in order to sustain a “per se” conviction. InState v. Allen, 256 Ga. App. 798, 570 S.E.2d 34 (2002), the Court held that expert testimony utilized by the State could be used to establish the alcohol concentration during the “relevant time period.” However, the
Allen Court did not address the requirements in
O.C.G.A. § 40-5-55(a) or
O.C.G.A. § 40-5-67.1(a) mandating the chemical test be performed “as soon as possible” as it was not properly raised on appeal.

Additionally, the issue of "retrograde extrapolation" by utilizing "Widmark's Formula" is a hotly-contested area of forensic law in DUI-alcohol cases. The world's greatest scientific minds have warned of the dangers of attempting to make precise calculations of a "number," without allowing for variability in both the defendant's rate of elimination and in factual data supporting the estimates. A.W. Jones, "Inter-Individual Variation in the Disposition and Metabolism of Ethanol in Healthy Men," Alcohol, vol.1, pp. 385-391 (1984); Rod G. Gullberg, "Considering Measurement Variability when Performing Retrograde Extrapolation of Breath Alcohol Results,"
Journal of Analytical Toxicolgy, vol. 18, pp. 126-127 (1994); Kurt Dubowski, "Absorption, Distribution, and Elimination of Alcohol: Highway Safety Aspects," 10 Journal of Studies on Alcohol, pp. 98-106 (1985).

It should be noted that where the State brings a per se DUI count, there will usually be a “less safe” count also. This means that even if the test result is suppressed, the State may still proceed under the alternative “less safe” count on the remaining evidence in the case. See Daniel v. State, 231 Ga. App. 125, 497 S.E.2d 656 (1998). In some cases, loss of the chemical test results will end the prosecution for DUI. In others, overwhelming evidence of impairment will seal the fate of the drunk driver even for a “refusal” case with no field tests.
Boyd v. State, 259 Ga. App. 864, 578 S.E.2d 472 (2003).

O.C.G.A. § 40-6-391(a)(5) does not require that a person be tested within three hours. The statute provides that it only needs to be established that the defendant's blood alcohol concentration was at or above the “per se” limit during the three-hour period after he ceased driving or exercising actual physical control of the vehicle.
Yarbrough v. State, 241 Ga. App. 777, 527 S.E.2d 628 (2000). The State will need an expert witness (toxicologist) to use retrograde extrapolation to establish a “likely” range of blood alcohol levels for the person driving.
State v. Allen, 256 Ga. App. 798, 570 S.E.2d 34 (2002). As a defense attorney, you must bring in a defense expert to show the error in such "estimates" or be prepared to see your client be convicted.

Practice Commentary

In adding a new type of DUI for inhaling toxic vapors, the legislature renumbered the old UBAL statute from (a)(4) to (a)(5). This has opened the door for targeted demurrers to be filed in response to faulty UTCs and accusations. These errors often are grounds for an acquittal or elimination of changes, depending on when and how the defense challenge is asserted.

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